PAROCZAY v. HODGES

Ernest PAROCZAY, Plaintiff,
v.
Luther H. HODGES, individually and as Secretary of Commerce of the United States, et al., Defendants

The opinion of the court was delivered by: YOUNGDAHL

The prior history of this case is fully set forth in the opinion of the Court of Appeals of December 28, 1961. Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439 (1961). Following the decision of the Court of Appeals, the case was remanded to the District Court, which on March 20, 1962, remanded the case to the Civil Service Commission 'with directions to conduct further administrative proceedings, including an oral hearing, not inconsistent with the aforesaid opinion of the Court of Appeals * * *.' The opinion of the Court of Appeals indicated that the sole issue in the case is whether the plaintiff's resignation of February 17, 1960, from the Department of Commerce was voluntary or involuntary. If the resignation was voluntarily given, then plaintiff has no right to the reinstatement in government employment which he seeks in this law suit. If the resignation was involuntarily given, however, then plaintiff's separation from government employment constituted a discharge, and he would be entitled to certain procedural rights under the Veterans' Preference Act, 111 U.S.App.D.C. at 364, n. 4, 297 F.2d at 441, including the right to respond on the merits to certain charges made against him. Upon remand to the Civil Service Commission, the Appeals Examining Office held a hearing and concluded, in an opinion filed June 7, 1962, that the resignation was voluntary. This decision was affirmed by the Commission's Board of Appeals and Review on January 15, 1963. Both plaintiff and defendants have now moved for summary judgment in this Court.
*fn1"

'there was no demand for an immediate resignation under threat of immediate charges. The employee was not told to 'sign now.' He was given three days within which to consider the course he would adopt. A request for opportunity to consult family and friends was not rejected, as plaintiff's affidavit states occurred in this case.' 111 U.S.App.D.C. at 364, 297 F.2d at 441.

Since plaintiff's resignation was involuntary it was void and of no effect; hence he was never legally separated from his position in the Weather Bureau of the Department of Commerce. This Court will therefore order plaintiff's reinstatement to his position as of the date of his unlawful removal, together with all rights, benefits and privileges that would have accrued from a continuity of service from the date of such unlawful removal to the present. This order will, of course, be without prejudice to the right of the Department of Commerce to institute charges against plaintiff, although the Court indicates no opinion as to whether such charges should be made in view of the honorable discharge which the Air Force issued after a full hearing on the merits, supra n. 1.

SUPPLEMENTAL MEMORANDUM AND ORDER

This Court's order of June 21, 1963 contained the following language:

'That plaintiff be reinstated to his position in the Department of Commerce as of the date of his unlawful removal, together with all rights, benefits and privileges that would have accrued from a continuity of service from the date of such unlawful removal to the present * * *.'

The second ground for the defendants' objecting to the Court's language is based not on any jurisdictional defect, but rather upon the suggestion that the Court need not order plaintiff's reinstatement, since a mere declaration of plaintiff's right to reinstatement would lead, in the normal course of governmental routine, to plaintiff's reinstatement. The defendants point again to Borak v. Biddle, 78 U.S.App.D.C. 374, 141 F.2d 278, supra, which suggested that 'courts should be slow in issuing mandamus which may result in interfering with the internal management of executive departments of government.' 78 U.S.App.D.C. at 377, 141 F.2d at 281. In that case, the Court of Appeals suggested that the District Court should first issue a declaratory judgment establishing the employee's rights and should retain jurisdiction so that a mandatory writ could issue in the even that neither an appeal nor reinstatement were to follow. Following this suggestion, this Court will therefore amend its order -- and it is hereby so amended -- to read: 'That plaintiff is entitled to be reinstated to his position, etc.' The Court will also retain jurisdiction over the case so that a mandatory injunction can issue if the defendants do not appeal within the prescribed statutory period and if they do not reinstate plaintiff on their own initiative at an earlier date.

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